Conference of State Court Administrators release policy paper calling for the end of “debtors’ prisons”

Williamsburg, VA (September 26, 2016)—The Conference of State Court Administrators (COSCA), the association of management executives that oversee judicial administration in the state courts, today released its 2016 policy paper recommending specific policies and practices that courts can adopt to minimize the negative impact of legal financial obligations and end so-called “debtors’ prisons,” while ensuring accountability for individuals who violate the law.

 “COSCA has long advocated against the practice of funding courts and other government activities through fees.  In this paper COSCA advocates for lawful, effective, and just policies toward those who are ordered to pay fines and fees,” said Arthur Pepin, the president of COSCA and Director of the New Mexico Administrative Office of the Courts.  “The objective is compliance, whether through payment in money, performing community service, or creating alternative ways to satisfy the public policy behind the imposition of fines and fees.  Incarceration must remain as the ultimate sanction for those who are able to pay but willfully refuse to do so.”

Among key recommendations, the paper “urges (COSCA) members and other state court system leaders to work to ensure that incarceration for…debt follows only upon a finding for willful failure to pay and after reasonable alternatives are offered to satisfy court obligations imposed by the law.” Later, the paper notes that “the members of COSCA will work to achieve the promise of Bearden more closely and reserve jail for those who willfully fail to pay court legal financial obligations,” a reference to the U.S. Supreme Court’s 1983 decision in Bearden v. Georgia holding that it is unlawful to incarcerate an offender for court debt absent proof of willful failure to pay.

The paper recommends a series of practices to make Bearden effective, including strengthening the ability of courts to assess the ability to pay through the use of automated tools or other existing means tests; adopting practices that reduce failures to appear, such as using phone call and text message reminders of pending court dates; expanding and improving access to alternatives to incarceration, such as community service; ensuring judges have the authority to impose alternatives for those unable to pay; and ultimately, imposing jail time for an offender’s willful refusal to pay. 

But it won’t happen alone, argues COSCA. The paper recognizes that pursuing solutions will require all branches of government working together. In many jurisdictions, “legislative bodies have and will continue to require that courts impose fees…” and that “where legislation or local ordinances disavow the authority of judges to exercise…discretion, it is important to reform the law,” a reference to the role that legislative bodies have in mandating courts to collect fines and fees. Such practices have become widespread in municipalities around the country, with perhaps the best-known case coming from Ferguson, Missouri.

This is not the first time the Conference has addressed the issue of court fines and fees. In 2012, COSCA issued policy paper arguing that courts should not be treated as revenue centers. In that paper, COSCA outlined a series of principles, including:

• Courts should be substantially funded from general governmental revenue sources, enabling them to fulfill their constitutional mandates
• Neither courts nor specific court functions should be expected to operate exclusively from proceeds produced by fees and miscellaneous charges
• Optional local fees or miscellaneous charges should not be established

Since the 1970s, the Conference of Chief Justices (CCJ)—the association of top judges from the 50 states, DC and the territories—has maintained the position that court functions should be funded from the general operating fund of the states in order that the judiciary can fulfill its obligation of upholding the Constitution and protecting the individual rights of all citizens by providing access to justice for all.

Further, both COSCA and CCJ have adopted the “Principles of Judicial Administration” developed by the National Center for State Courts (NCSC).  This includes the principle that “Court fees should not be set so high as to deny reasonable access to dispute resolution services provided by the courts. Courts should establish a method to waive or reduce fees when needed to allow access.”

COSCA policy papers can be found online here. 

The National Center for State Courts provides executive secretariat services to COSCA and CCJ.  Headquartered in Williamsburg, Va., NCSC is a nonprofit court organization dedicated to improving the administration of justice by providing leadership and service to the state courts. Founded in 1971 by the Conference of Chief Justices and Chief Justice of the United States Warren E. Burger, NCSC provides education, training, technology, management, and research services to the nation’s state courts.